Can a county commissioner put an item on the agenda or revisit something the court already voted on?

Plain-English summary

A county commissioners court in Ector County voted to amend its rules on sexually oriented businesses while one commissioner was absent, and opponents wanted the court to take another look. The county attorney asked the Attorney General a set of nuts-and-bolts questions about how a commissioners court runs its own meetings: can a settled matter be reopened, who controls what goes on the agenda, and can the court run its meetings by Robert's Rules of Order?

On reopening a decided issue, the Attorney General said yes. A commissioners court can revisit and even reverse its earlier action, or just discuss the possibility, as long as it does not trample vested rights. The one procedural string attached is the Open Meetings Act: the subject has to be properly noticed before the court can actually deliberate on it. A commissioner can raise a question at a meeting about facts or existing policy that is not on the notice, but the court cannot turn that into a real discussion of the issue; at most it can vote to put the subject on a future agenda.

On who controls the agenda, the Attorney General was firm: the agenda belongs to the commissioners court as a whole, not to the county judge. Even though the judge presides, he cannot decide what gets on or stays off. Each individual commissioner may put items of his own choosing on the agenda. The court can adopt a procedure for handling agenda requests, but it cannot use that procedure to shut a member out, because a duly elected commissioner is entitled, at a minimum, to a public forum for an issue, even if his side later loses the vote. Finally, a commissioners court can adopt reasonable meeting rules consistent with law, but if it wants Robert's Rules of Order (or any treatise's rules) to actually govern and bind the members, it has to formally vote to adopt them.

Background and statutory framework

The underlying dispute involved amendments to a county ordinance regulating sexually oriented businesses, an area where Local Government Code chapter 243 grants municipal and county authority over location.

On reconsideration, the opinion relied on the principle that a commissioners court may rescind or modify its prior orders so long as vested rights are not impaired, citing August A. Busch & Co. v. Caufield, Collingsworth County v. Myers (a commissioners court may revoke or modify a resolution setting the county judge's salary), and Clark v. Tarrant County Child Welfare Unit (the legislature may as a general matter repeal any statute at will).

The commissioners court is a governmental body subject to the Open Meetings Act (V.T.C.S. art. 6252-17, § 1(c)), so written notice of the date, hour, place, and subject of each meeting must be given under section 3A. Section 3A(a) creates a narrow exception: the notice requirement does not apply to matters about which specific factual information or a recitation of existing policy is furnished in response to an inquiry made during a meeting, whether by a member of the public or a member of the body, but any deliberation, discussion, or decision on the inquiry's subject is limited to a proposal to place that subject on a future agenda for which notice has been given.

On agenda control, the opinion relied on Attorney General Opinion JM-63 (1983), which held that the county judge, although the presiding officer of the court (Local Gov't Code § 81.001(b), formerly V.T.C.S. art. 2342 (1925)), is not authorized to control the content of the agenda. Hansbro v. Neiderhofer supports this, holding a county judge subject to mandamus where he refused to recognize a motion duly proposed and seconded at a commissioners court meeting. The commissioners court as a whole determines its own agenda, grounded in its constitutional power and jurisdiction over county business (Tex. Const. art. V, § 18; Gov't Code § 311.013; Canales v. Laughlin), and each member must be permitted to place on the agenda any item of his choosing.

On meeting procedure, the opinion noted that Local Government Code sections 81.005 and 81.006 address only the time, location, and quorum requirements for commissioners court meetings, and that no statute sets out comprehensive procedures. A commissioners court has only the powers expressly or impliedly granted by the constitution and statutes, but broad discretion in exercising the powers it has (Canales; Anderson v. Wood), and may adopt reasonable rules consistent with law to govern the conduct of its meetings (Attorney General Opinion H-188 (1973)).

Citations

• Local Government Code ch. 243 (county and municipal authority over location of sexually oriented businesses)
• Local Government Code § 81.001(b) (county judge as presiding officer; formerly V.T.C.S. art. 2342 (1925))
• Local Government Code §§ 81.005, 81.006 (time, location, and quorum for commissioners court meetings)
• V.T.C.S. art. 6252-17 (Open Meetings Act), § 1(c) (court subject to act), § 3A(a) (notice requirement and inquiry exception)
• Tex. Const. art. V, § 18 (commissioners courts' power and jurisdiction over county business)
• Government Code § 311.013
• August A. Busch & Co. v. Caufield, 135 S.W. 244 (Tex. Civ. App. 1911, writ ref'd)
• Collingsworth County v. Myers, 35 S.W. 414 (Tex. Civ. App.-Fort Worth 1896, no writ)
• Clark v. Tarrant County Child Welfare Unit, 509 S.W.2d 378, 381 (Tex. Civ. App.-Fort Worth 1974, no writ)
• Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Attorney General Opinions JM-63 (1983), H-188 (1973)

Common questions

Can a commissioners court reopen something it already voted on?
Yes. The Attorney General concluded that taking final action does not stop the court from later amending the measure or discussing a possible amendment, as long as vested rights are not impaired and the topic has been properly noticed under the Open Meetings Act.

Can a commissioner just raise a new issue at a meeting that isn't on the agenda?
Only in a limited way. Under the Open Meetings Act's section 3A(a) exception, a commissioner may make an inquiry about factual information or existing policy not on the notice, but any deliberation is limited to proposing that the subject be placed on a future agenda. The court cannot have a full discussion of an unnoticed subject.

Does the county judge control the agenda?
No. The opinion concluded that authority to prepare the agenda is vested in the commissioners court as a whole, not the county judge. Even though the judge presides, each individual commissioner may place items of his own choosing on the agenda.

Can the court adopt a procedure that limits what gets on the agenda?
It can adopt a procedure, but not one whose net effect blocks a member from placing an item so it can be discussed publicly. The opinion would not condone a procedure that effectively denies an elected commissioner at least a public forum on an issue, though the eventual vote is still subject to majority rule.

Can a commissioners court run its meetings by Robert's Rules of Order?
Yes, if it formally adopts them. No statute prescribes comprehensive meeting procedures, and the court may adopt reasonable rules consistent with law. But to make Robert's Rules (or a treatise's law-consistent provisions) the controlling authority binding all members, the court must vote to formally adopt them.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0228
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0228.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 15, 1993

Honorable Tracey Bright
Ector County Attorney
County Courthouse Room 201
Odessa, Texas 79761

Opinion No. DM-228

Re: Whether a county commissioner may raise an issue for discussion after the commissioners court has taken final action on it and related questions (RQ-204)

Dear Ms. Bright:

You inquire about the procedures for raising an issue for discussion at a meeting of the commissioners court. You state that the Commissioners Court of Ector County took a final vote on amendments to an ordinance concerning sexually oriented businesses at a meeting from which one commissioner was absent. See generally Local Gov't Code ch. 243 (municipal and county authority to regulate location of sexually oriented business). Opponents of the amendment wish to have the court reconsider them. Questions have arisen whether this matter may be placed on the agenda, or whether the commissioners may discuss it without having it placed on the agenda.

You ask:

(1) In a subsequent meeting, can a commissioner raise an issue for discussion if the Commissioners Court has previously taken final action on the matter?

The fact that the commissioners court has taken final action on amendments to an ordinance does not prevent it from amending the ordinance in the future or engaging in discussion that may lead to an amendment. See August A. Busch & Co. v. Caufield, 135 S.W. 244 (Tex. Civ. App. 1911, writ ref'd) (commissioners court has power to rescind an order made in its discretion, where no vested rights are impaired); Collingsworth County v. Myers, 35 S.W. 414 (Tex. Civ. App.-Fort Worth 1896, no writ) (commissioners court may at any time revoke or modify a resolution setting the county judge's salary . . .); see also Clark v. Tarrant County Child Welfare Unit, 509 S.W.2d 378, 381 (Tex. Civ. App.-Fort Worth 1974, no writ) (legislature may as a general matter repeal any statute at will). The commissioners court is subject to the Open Meetings Act, see V.T.C.S. art. 6252-17, § 1(c), and it must comply with the requirements of the Open Meetings Act. Written notice of the date, hour, place, and subject of each meeting held by the commissioners court must be given to the public in accordance with section 3A of the act, subject to the following exception:

The requirement for notice . . . does not apply to matters about which specific factual information or a recitation of existing policy is furnished in response to an inquiry made at such meeting, whether such inquiry is made by a member of the general public or by a member of the governed body. Any deliberation, discussion, or decision with respect to the subject about which inquiry was made shall be limited to a proposal to place such subject on the agenda for a subsequent meeting of such governmental body for which notice has been provided in compliance with this Act.

V.T.C.S. art. 6252-17, § 3A(a). Section 3A of the Open Meetings Act allows a county commissioner to make an inquiry during the meeting about factual information or existing policy that does not appear on the meeting notice, but the court may not discuss the subject except within the narrow limits set out in section 3A.

In addressing your question about authority to place a subject on the agenda for a commissioners court meeting, we assume that all subjects on the agenda of the meeting are or are not the subject of the public notice of the meeting provided in compliance with section 3A of the Open Meetings Act. Attorney General Opinion JM-63 (1983) determined that the county judge was not authorized to control the contents of the agenda, even though a statute designated him the presiding officer of the court. Local Gov't Code § 81.001(b) (formerly V.T.C.S. article 2342 (1925)). The opinion in Hansbro v. Neiderhofer, 83 S.W.2d 685 (Tex. Civ. App.-Beaumont 1935, no writ) supports this conclusion. It held that a county judge was subject to a writ of mandamus where he refused to recognize a motion duly proposed and seconded at a commissioners court meeting. The court stated that a county judge must allow the members of the court to submit motions to a vote of the court. Id. at 685. Attorney General Opinion JM-63 concluded that the commissioners court as a whole has the authority to determine its own agenda. See Tex. Const. art. V, § 18 (commissioners courts shall have power and jurisdiction over county business); Gov't Code § 311.013; Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948). It also stated that "[e]ach member of the court . . . must be permitted to place on their agenda any item of his choosing." Attorney General Opinion JM-63 at 3. Thus, a county commissioner may place a matter on the agenda for a meeting.

This conclusion does not mean that a commissioners court cannot adopt a procedure for placing items on the agenda. The net effect of any procedure adopted, however, cannot be to prevent or preclude a member of the court from placing an item on the agenda so that it may be discussed publicly. While votes on any particular matter may be subject to majority rule, we cannot condone the implementation of any procedure that would effectively preclude a duly elected representative on the commissioners court from at a minimum providing a public forum for discussion of any particular issue.

You also ask:

(3) May Robert's Rules of Order be used to govern discussion in the commissioners court meetings?

(4) If a treatise may be used to regulate the conduct of meetings, must it be formally adopted as the controlling authority in commissioners court?

Sections 81.005 and 81.006 of the Local Government Code address the time, location, and quorum requirements of commissioners court meetings. The court is also subject to the Open Meetings Act, but we have found no statute setting out comprehensive procedures for the conduct of commissioners court meetings.

The commissioners court of a county has only those powers that are expressly or by necessary implication granted to it by the constitution and the statutes, but has broad discretion in exercising expressly conferred powers. Canales, 214 S.W.2d 451; Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941). A commissioners court may adopt reasonable rules that are consistent with relevant provisions of law to govern the conduct of its meetings. See generally Attorney General Opinion H-188 (1973). If the commissioners court wishes its meetings to be conducted according to Robert's Rules of Order or those provisions of a treatise that are consistent with law, and to require compliance with those provisions by all members of the court, the court must formally vote to adopt the provisions.

SUMMARY

The commissioners court may consider or reconsider an issue at a subsequent meeting even though it has previously taken final action on it, provided that the topic of discussion has been properly noticed. Authority to prepare the agenda for a meeting is vested in the commissioners court as a whole, and not in the county judge. An individual commissioner may place items of his own choosing on the agenda. A commissioners court may adopt reasonable rules consistent with relevant statutory and constitutional provisions to govern its meetings. If the court wishes its meetings to be governed by the provisions of a treatise that are consistent with law, it must vote to formally adopt those provisions as its controlling authority.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee